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KULIKOWSKI v. POLAND - 18353/03 [2009] ECHR 779 (19 May 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/779.html
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[2009] ECHR 779
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FOURTH
SECTION
CASE OF KULIKOWSKI v. POLAND
(Application
no. 18353/03)
JUDGMENT
STRASBOURG
19 May
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kulikowski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 16 April 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 18353/03) against the
Republic of Poland lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Polish national, Mr Adam Kulikowski, on 18 May 2001.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs. The applicant was represented by Ms B. Słupska-Uczkiewicz,
a lawyer practising in Wrocław.
The
applicant alleged, in particular, that his detention pending trial
had exceeded a “reasonable time” within the meaning of
Article 5 § 3 of the Convention. He further complained under
Article 6 § 1 read together with Article 6 § 3 (c) of the
Convention that he had been deprived of access to the Supreme Court.
He also complained, relying on Article 8 of the Convention, of a
breach of his right to respect for his family life and correspondence
in that during his pre-trial detention he had not been allowed to see
his minor sons and his correspondence with them had been withheld.
On 27 September 2007
the President of the Fourth Section decided to give notice of the
application to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
The
Government failed to submit their reply to the questions put to it by
the Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1964. He is currently serving a prison
sentence.
1. The applicant's pre trial detention
On
22 March 2000 the applicant was arrested. On 24 March 2000 he
was remanded in custody by the Gliwice District Court (Sąd
Rejonowy) on suspicion that he had killed his mother. His
pre trial detention was subsequently extended by the Katowice
Regional Court (Sąd Okręgowy) on 19 June 2000,
by the Katowice Court of Appeal (Sąd Apelacyjny) on
6 September 2000, by decisions of the Gliwice Regional Court of
5 March and 13 July 2001, and by decisions of the Katowice
Court of Appeal of 13 March, 29 May, 10 July and
28 August 2002.
The
domestic courts justified the applicant's pre trial detention in
its initial phase by the existence of strong evidence against him and
the likelihood that a severe penalty would be imposed, as well as by
the need to secure the proper course of the proceedings. During that
time, an autopsy, a number of unspecified biological tests and an
inspection of the crime scene were carried out. At the later stage of
the applicant's detention, the authorities referred to the severity
of the sentence likely to be imposed on him. In addition, they
emphasised that the investigation could not be completed for reasons
beyond the prosecutor's control, namely delays in obtaining expert
reports and in viewing the applicant's testimony recorded on video
tape.
From
17 December 2001 until 2 January 2002 the applicant was
concurrently serving a sentence of sixteen days' imprisonment,
imposed on an unspecified date by the Zabrze District Court in
another criminal case.
2. Criminal proceedings against the applicant
The
applicant's minor sons and his wife were witnesses in the
investigation. In May 2002 the prosecutor decided that a psychologist
should be present when the younger son was to be interviewed by the
prosecution. Apparently the older son was also interviewed by the
prosecutor on an unspecified date. The applicant submitted that his
wife and two sons were not allowed, for an unspecified period, to
communicate with him in writing or to visit him in prison. The
prosecution relied on Article 217 of the Code of Execution of
Criminal Sentences (see paragraph 30 below).
The
applicant was indicted on 20 November 2000. In the proceedings
before the first- and second-instance courts he was represented by a
legal-aid lawyer.
On
14 August 2002 the Gliwice Regional Court convicted the
applicant of murder and sentenced him to twelve years' imprisonment.
On
19 December 2002 the Katowice Court of Appeal upheld that
judgment. A copy of the judgment was served on the applicant on
17 January 2003.
3. Proceedings concerning the lodging of a cassation appeal
against the judgment of the appellate court
On
21 February 2003 the Katowice Court of Appeal appointed a
legal aid lawyer for the purposes of the cassation proceedings.
A
copy of the judgment of 19 December 2002 was served on the
legal-aid lawyer on 3 March 2003.
By
a letter of 20 March 2003 the lawyer informed the Katowice Court of
Appeal that, in her opinion, a cassation appeal in the applicant's
case lacked prospects of success and that she therefore refused to
prepare and lodge one with the Supreme Court. By a letter of 27 March
2003 the Katowice Court of Appeal informed the applicant of the
lawyer's refusal and, further, that no other legal-aid lawyer would
be appointed for the purpose of lodging a cassation appeal in his
case.
The
court's letter was served on the applicant by the prison
administration on 1 April 2003.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Detention on remand
The
relevant domestic law and practice concerning the imposition of
detention on remand (aresztowanie tymczasowe), the grounds for
its extension, release from detention and rules governing other,
so-called “preventive measures” (środki
zapobiegawcze) are stated in the Court's judgments in the cases
of Gołek v. Poland, no. 31330/02, §§ 27-33,
25 April 2006 and Celejewski v. Poland,
no. 17584/04, §§ 22-23, 4 August 2006.
2. Cassation appeal
Under
the Law of 6 June 1997 - Code of Criminal Procedure (“the
Code”), which entered into force on 1 September 1998, a
party to criminal proceedings can lodge a cassation appeal with the
Supreme Court against any final decision of an appellate court which
had terminated criminal proceedings. The cassation appeal has to be
lodged and signed by an advocate, on pain of being declared
inadmissible. The relevant part of Article 523 § 1 of
the Code provides:
“A cassation appeal may be lodged only on the
grounds referred to in Article 439 [these include a number of
procedural irregularities, such as, for instance, incorrect
composition of the trial court; lack of legal assistance in cases
where such assistance was compulsory; breach of the rules governing
jurisdiction in criminal matters; trying a person in absentia in
cases where his presence was obligatory and thus depriving him of an
opportunity to defend himself, etc.] or on the ground of another
flagrant breach of law provided that the judicial decision in
question was affected as a result of that breach. A cassation appeal
shall not lie against the severity of the penalty imposed
(niewspółmierności kary).”
Pursuant to Article 524 § 1 of the Code, a
cassation appeal has to be lodged with the appellate court competent
to carry out an initial examination of its admissibility within
thirty days from the date of service of the judgment of the appellate
court with its written grounds on the party or, if the party has been
represented, on his or her lawyer.
3. Legal assistance for the purposes of lodging a
cassation appeal
Under
Article 83 of the Code, an accused may appoint a lawyer to represent
him or her in criminal proceedings. If he or she cannot afford
lawyers' fees, a request for legal aid may be made under Article 78
of the Code.
A
grant of legal aid expires upon a judgment of an appellate court. A
new decision on legal aid has to be made if the convicted person
wishes to institute further proceedings in order to lodge a cassation
appeal with the Supreme Court. The relevant part of Article 84 §
3 of the Code provides:
“A defence counsel appointed under the legal aid
scheme in the cassation proceedings ... shall prepare and sign a
cassation appeal ... or shall inform the court, in writing, that he
or she has not found any grounds for lodging a cassation appeal ...
If a cassation appeal ... is lodged, the defence counsel is entitled
to represent the defendant in the subsequent proceedings.”
In
its decision of 17 June 1997 (V KX 57/97, OSNKW 1997/9 010/82)
the Supreme Court stated that cassation proceedings had a special
character in that the judgment essentially became final after it had
been upheld by the appellate court. Bearing in mind the special
character of these proceedings, the court was of the view that at
this stage the mere fact that the convicted person was granted legal
aid was sufficient to ensure an effective exercise of his or her
defence rights. It was the lawyer's task to analyse the case and
establish whether there were grounds on which to lodge a cassation
appeal against the judgment of the appellate court. If the lawyer was
of the opinion that there were no grounds on which to do so, there
was no legal basis in the Code of Criminal Procedure that would
either oblige the lawyer to prepare such an appeal against his or her
better judgment, or oblige the court to assign another lawyer to
prepare such an appeal in the case.
In
its decision of 25 March 1998 the Supreme Court stated that the
refusal of a legal aid lawyer to lodge a cassation appeal did
not constitute a valid ground for granting retrospective leave to
lodge such an appeal by another lawyer out of time (V KZ 12/98). It
confirmed this ruling in a further decision of 1 December 1999. The
Supreme Court observed that the court could only assign a new
legal-aid lawyer to the case if it were shown that the first lawyer
had been negligent in his or her task of assessing whether a
cassation appeal had any prospects of success. If this were not the
case, a court was not obliged to assign a new legal-aid lawyer to
represent the convicted person and its refusal was not subject to
appeal (III KZ 139/99).
In
a later decision of 1 July 1999 the Supreme Court expressed the
opinion that such negligence could be proved only in disciplinary
proceedings instituted against a lawyer under the provisions of the
Bar Act (V KZ 33/99).
In
its decisions of 13 March and 17 September 2002 the Supreme Court
expressed the view that when a legal-aid lawyer refused to represent
a convicted person before the Supreme Court, the appellate court was
not obliged to assign a new lawyer to the case (II KZ 11/02, II KZ
36/02).
On
26 February 2002 the Supreme Court changed its previous position
concerning the date from which the time limit for lodging of a
cassation appeal started to run (see paragraph 20 above). It examined
a particular situation where a legal-aid lawyer had refused to
represent a convicted person for the purposes of cassation
proceedings, finding that a cassation appeal would offer no prospects
of success. It held that in such a situation the appellate court was
obliged to instruct the defendant that the time-limit for lodging a
cassation appeal started to run only on the date on which the
defendant was served with the lawyer's refusal and not on the earlier
date when the judgment of the appellate court was served on the
defendant himself. It stated that it was not open to doubt that a
defendant faced with the legal-aid lawyer's refusal had a right to
take other measures to seek legal assistance necessary for an
effective lodging of a cassation appeal (III KZ 87/01). The Supreme
Court reiterated its position in a decision of 6 May 2008 and in a
number of similar decisions given in 2008. It observed that there had
been certain discrepancies in the judicial practice as to the manner
in which the time-limit in such situations was calculated, but the
strand of the case-law launched by the decision given in February
2002 was both dominant and correct, and also accepted by doctrine as
providing to the defendants adequate procedural guarantees of access
to the Supreme Court within a reasonable time-frame (II KZ 16/08).
4. Detainees' correspondence and contacts with family
Rules
relating to means of controlling correspondence of persons involved
in criminal proceedings are set out in the Code of Execution of
Criminal Sentences (Kodeks karny wykonawczy) (“the 1997
Code”) which entered into force on 1 September 1998.
Article 214
§ 1 reads as follows:
“Unless exceptions are provided for in the present
Chapter, a detainee shall enjoy at least the same rights as those
secured to a convicted person serving a sentence of imprisonment
under the ordinary regime in a closed prison. No restrictions shall
be applied to him except such as are necessary to secure the proper
conduct of criminal proceedings, to maintain order and security in a
remand centre and to prevent demoralisation of detainees.”
Article
217 § 1 reads, in so far as relevant, as follows:
“(...) detainee's correspondence shall be censored
by [the authority at whose disposal he remains], unless the authority
decides otherwise.”
This
provision further provides that a detainee is allowed to receive
visitors, provided that he has obtained permission from the
investigating prosecutor (at the investigative stage) or from the
trial court (once the trial has begun).
31. On
1 September 1998 the Rules of Detention on Remand (Rozporządzenie
Ministra Sprawiedliwości w sprawie regulaminu wykonywania
tymczasowego aresztowania) entered into
force. Paragraph 36 of the Rules provides:
“The detainee's correspondence ... is dispatched
through the intermediary of the authority at whose disposal he
remains.”
III. RELEVANT NON-CONVENTION MATERIAL
32. In
1990, the UN adopted the Basic Principles on the Role of Lawyers (the
Basic Principles). They provide, in particular:
“13. The duties of lawyers towards their clients
shall include:
(a) Advising clients as to their legal rights and
obligations, and as to the working of the legal system in so far as
it is relevant to the legal rights and obligations of the clients;
(b) Assisting clients in every appropriate way, and
taking legal action to protect their interests;
(c) Assisting clients before courts, tribunals or
administrative authorities, where appropriate.
14. Lawyers, in protecting the rights of their clients
and in promoting the cause of justice, shall seek to uphold human
rights and fundamental freedoms recognized by national and
international law and shall at all times act freely and diligently in
accordance with the law and recognized standards and ethics of the
legal profession.
15. Lawyers shall always loyally respect the interests
of their clients.
A
number of recommendations have been adopted by the Committee of
Ministers of the Council of Europe with regard to access to justice
and the provision of legal-aid services. In particular,
Recommendation No. R (81) 7 on measures facilitating access
to justice provides:
“4. No litigant should be prevented from being
assisted by a lawyer. The compulsory recourse of a party to the
services of an unnecessary plurality of lawyers for the need of a
particular case is to be avoided. Where, having regard to the nature
of the matter involved, it would be desirable, in order to facilitate
access to justice, for an individual to put his own case before the
courts, then representation by a lawyer should not be compulsory.”
The relevant parts of Recommendation No. R (93) 1 of
the Committee of Ministers to Member States on effective access to
the law and to justice for the very poor read as follows:
“Recalling that in addition to the right of access
to the law and to justice provided for in Article 6 of the European
Convention on Human Rights, the other provisions of the Convention
and particularly Articles 2, 3 and 8 are equally applicable to the
very poor, as are the other legal instruments of the Council of
Europe such as the European Social Charter;
Considering that this recommendation is intended to
improve, especially with regard to the very poor, existing legal
advice and legal aid systems, and therefore to complement existing
machinery with regard to the other categories of people for which the
systems were designed.
Recommends that the governments of member states:
1. Facilitate access to the law for the very poor (“the
right to the protection of the law”) by: ...
b. promoting legal advice services for the very poor;
...
3. Facilitate effective access to the courts for the
very poor, especially by the following means:
c. recognising the right to be assisted by an
appropriate counsel, as far as possible of one's choice, who will
receive adequate remuneration;
e. simplifying the procedure for granting legal aid to
the very poor, [...]”
In 2000 the Committee of Ministers of the Council of
Europe adopted Recommendation No. R (2000) 21. The Recommendation
further developed the Basic Principles at European level. In
particular, it emphasised access for all persons to lawyers as well
as the role and duties of lawyers. More specifically, it provided:
“The Committee of Ministers, under the terms of
Article 15.b of the Statue of the Council of Europe, [...]
Underlining the fundamental role that lawyers and
professional associations of lawyers also play in ensuring the
protection of human rights and fundamental freedoms; [...]
Considering that access to justice may require persons
in an economically weak position to obtain the services of lawyers,
Recommends the governments of member States to take or
reinforce, as the case may be, all measures they consider necessary
with a view to the implementation of the principles contained in this
Recommendation.
1. All necessary measures should be taken to respect,
protect and promote the freedom of exercise of the profession of
lawyer without discrimination and without improper interference from
the authorities or the public, in particular in the light of the
relevant provisions of the European Convention on Human Rights.
1. All necessary measures should be taken to ensure that
all persons have effective access to legal services provided by
independent lawyers,
2. Lawyers should be encouraged to provide legal
services to persons in an economically weak position.
3. Governments of member States should, where
appropriate to ensure effective access to justice, ensure that
effective legal services are available to persons in an economically
weak position, in particular to persons deprived of their liberty.
4. Lawyers' duties towards their clients should not be
affected by the fact that fees are paid wholly or in part from the
public funds.”
IV. THE RESOLUTION OF THE COUNCIL OF EUROPE'S COMMITTEE OF
MINISTERS
A. The Committee of Ministers
On 6 June 2007 the Committee of Ministers adopted
an Interim Resolution concerning the judgments of the European Court
of Human Rights in 44 cases against Poland relating to the
excessive length of detention on remand (“the 2007
Resolution”). Noting that the number of cases in which the
European Court had found violations of Article 5 § 3
of the Convention against Poland was constantly increasing, it
concluded that this revealed a structural problem. A more detailed
rendition of the 2007 Resolution can be found in the Court's judgment
given in the case of Kauczor v. Poland (see Kauczor
v. Poland,
no. 45219/06, § 34, 3 February 2009; not
final).
B. The Council of Europe's Commissioner for Human
Rights
On
20 June 2007 the Council of Europe's Commissioner for Human Rights
released a Memorandum to the Polish Government concerning, among
other issues, the use of the detention measure in Poland, stressing
that examples of cases brought to the Court where pre-trial detention
had lasted between 4 to 6 years were not uncommon. The Commissioner
urged the Polish authorities to review the application and
functioning of pre-trial detention in Polish law. A more detailed
rendition of the relevant parts of the Memorandum can be found in the
above mentioned Kauczor
judgment (see Kauczor
v. Poland,
cited above, § 35).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained that the length of his detention pending trial
had been excessive. He relied on Article 5 § 3 of the
Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
A. Admissibility
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
The
applicant's detention started on 22 March 2000, when he was arrested.
From 17 December 2001 until 2 January 2002 the applicant was
concurrently serving a sentence of 16 days' imprisonment, imposed on
him in another criminal case. This period, being covered by Article 5
§ 1 (a), must therefore be subtracted from the period of
the applicant's pre trial detention for the purposes of
Article 5 § 3.
On
14 August 2002 the Gliwice Regional Court convicted him as charged.
As from that date he was detained “after conviction by a
competent court”, within the meaning of Article 5 § 1 (a)
and, consequently, that period of his detention falls outside the
scope of Article 5 § 3 (see Kudła v.
Poland [GC], no. 30210/96, § 104). Accordingly,
the period to be taken into consideration amounts to two years, four
months and six days.
2. The Court's assessment
The
applicant submitted that his detention pending trial had been
excessively long.
The
Court observes that the general principles regarding the right “to
trial within a reasonable time or to release pending trial, as
guaranteed by Article 5 § 3 of the Convention have been stated
in a number of its previous judgments (see, among many other
authorities, Kudła, cited above, § 110
et seq, ECHR 2000 XI; and McKay v. the United
Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006-...,
with further references).
In
their detention decisions, the authorities, in addition to the
reasonable suspicion against the applicant, relied principally on
three grounds, namely, the serious nature of the offence with which
he had been charged, the severity of the penalty to which he was
liable and on the need to secure the proper conduct of the
proceedings.
The
Court accepts that the reasonable suspicion against the applicant of
having committed a serious offence could initially warrant his
detention. Also, the need to secure the proper conduct of the
proceedings, in particular the process of obtaining evidence from
witnesses constituted valid grounds for the applicant's initial
detention.
However,
with the passage of time, those grounds became less and less
relevant. The Court must then establish whether the other grounds
adduced by the courts – namely, the severity of the anticipated
sentence – were “relevant” and “sufficient”
(see, Kudła cited above, § 111).
According
to the authorities, the likelihood of a severe sentence being imposed
on the applicant created a presumption that the applicant would
obstruct the proceedings. They relied on that ground of the
applicant's detention during its entire duration. However, the Court
would reiterate that, while the severity of the sentence faced is a
relevant element in the assessment of the risk of absconding or
re-offending, the gravity of the charges cannot by itself justify
long periods of detention pending trial (see Michta v. Poland,
no. 13425/02, §§ 49, 4 May 2006).
The Court further emphasises that, when deciding
whether a person is to be released or detained, the authorities are
obliged under Article 5 § 3 to consider alternative
means of guaranteeing his appearance at the trial. Indeed, that
Article lays down not only the right to “trial within a
reasonable time or release pending trial” but also provides
that “release may be conditioned by guarantees to appear for
trial” (see Jabłoński
v. Poland,
no. 33492/96, § 83, 21 December 2000). In the
present case, the Court notes that there is no express indication
that during the entire period of the applicant's pre-trial detention
the authorities envisaged any other guarantees designed to secure his
appearance at the trial. Nor did they give any consideration to the
possibility of ensuring his presence at trial by imposing on him
other “preventive measures” expressly intended to secure
the proper conduct of criminal proceedings.
The Court further notes that the applicant was
detained on charges of murder. It does not appear therefore that his
case presented particular difficulties for the investigation
authorities, especially since it had been committed in a family
setting, and for the courts to determine the facts and mount a case
against the perpetrator, as would undoubtedly have been the case had
the proceedings concerned organised crime (see Celejewski
v. Poland,
no. 17584/04, § 37, 4 May 2006; Bąk v. Poland,
no. 7870/04, § 64, ECHR 2007 ... (extracts)).
Lastly,
the Court observes that the difficulties involved in the taking of
the expert evidence on which the authorities relied at the later
stage of the proceedings (see paragraph 8 above) cannot justify the
lengthy period of the applicant's detention. The Court sees no cause
in the circumstances of the present case for departing from the usual
principle that the primary responsibility for delays resulting from
the provision of expert opinions rests ultimately with the State
(see, mutatis mutandis, Capuano v. Italy, 25 June 1987,
§ 32, Series A no. 119; Musiał v. Poland [GC],
no. 24557/94, § 46, ECHR 1999 II).
Having
regard to the foregoing, the Court concludes that the grounds given
by the domestic authorities could not justify the overall period of
the applicant's detention. In these circumstances it is not necessary
to examine whether the proceedings were conducted with special
diligence.
There
has accordingly been a violation of Article 5 § 3 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 IN CONJUNCTION
WITH ARTICLE 6 § 3 (c ) OF THE CONVENTION
The
applicant further complained that as a result of the legal aid
lawyer's refusal to draft a cassation appeal he had been denied
effective access to the Supreme Court. He relied on Article 6 §
1 taken together with Article 6 § 3 (c) of the
Convention. Those provisions, insofar as relevant, read:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
3. Everyone charged with a criminal offence
has the following minimum rights: ...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require”
A. Admissibility
The
Court considers that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. No other
ground for declaring it inadmissible has been established. It must
therefore be declared admissible.
B. Merits
1. The applicant's submissions
The
applicant submitted that the legal-aid lawyer's refusal to prepare a
cassation appeal and the court's refusal to assign a new legal-aid
lawyer to the case rendered the proceedings unfair. He had thereby
been deprived of the possibility of having the shortcomings of the
proceedings examined by the Supreme Court and of access to that
court. The mere fact that he had been granted legal aid should not
have been regarded by the domestic authorities as offering him an
effective guarantee that his defence rights would be duly observed.
The applicant further criticised the case law of the Supreme
Court to the effect that the court could only assign a new legal-aid
lawyer to the case if it had been shown that the first lawyer had
been negligent in his or her task of assessing whether a cassation
appeal had any prospects of success. This approach had been followed
de facto in his case. The applicant concluded, referring to
the Court's judgments in the cases of Siałkowska v. Poland,
no. 8932/05, 22 March 2007 and Staroszczyk v. Poland,
no. 59519/00, 22 March 2007, that he could not effectively
enjoy his right to defend himself with the benefit of legal
assistance, including before the Supreme Court.
2. Principles established by the Court's case-law
a) The scope of the State's liability
ratione personae under the Convention
The
Court first notes that the guarantees in paragraph 3 of
Article 6 are specific aspects of the right to a fair trial in
criminal proceedings as set forth in paragraph 1 of the same Article.
Accordingly, the applicant's complaint will be examined under these
provisions taken together (see, among other authorities, Benham
v. the United Kingdom, judgment of 10 June 1996,
Reports of Judgments and Decisions 1996-III, p. 755,
§ 52; Bobek
v. Poland, no. 68761/01, § 55, 17 July
2007).
The Court observes at the outset that the
responsibility of the Contracting Parties is incurred by the actions
of their organs. A lawyer, even if officially appointed, cannot be
considered to be an organ of the State. Given the independence of the
legal profession from the State, the conduct of the case is
essentially a matter between the defendant and his or her counsel,
whether counsel be appointed under a legal aid scheme or be
privately financed, and, as such, cannot, other than in special
circumstances, incur the State's liability under the Convention (see
Artico v. Italy, judgment of 30 May 1980, Series A
no. 37, p. 18, § 36; Daud v. Portugal
judgment of 21 April 1998, Reports 1998-II, p. 749,
§ 38; Tuziński v. Poland (dec),
no. 40140/98, 30.03.1999; Rutkowski v. Poland
(dec.), no. 45995/99, ECHR 2000-XI; Cuscani v. the
United Kingdom, no. 32771/96, § 39, 24 September
2002).
Nevertheless, assigning counsel to represent a party
to the proceedings does not in itself ensure the effectiveness of the
assistance (see Imbrioscia v. Switzerland, judgment of
24 November 1993, Series A no. 275, § 38). There
may be occasions when the State should act and not remain passive
when problems of legal representation are brought to the attention of
the competent authorities. It will depend on the circumstances of the
case whether, taking the proceedings as a whole, the legal
representation may be regarded as practical and effective (see,
mutatis mutandis, Artico, cited above, § 33;
Goddi v. Italy, judgment of 9 April 1984, Series A
no. 76, p. 11, § 27; Rutkowski, cited
above; Staroszczyk v. Poland, cited above, §§ 121-122,
Siałkowska v. Poland, cited above, §§ 99-100).
b) Access to court
The
Court further emphasises the importance of the right of access to a
court, having regard to the prominent place held in a democratic
society by the right to a fair trial (see Airey v. Ireland,
judgment of 9 October 1979, Series A no. 32, p. 12-13,
§ 24). A restrictive interpretation of that right would not
be consonant with the object and purpose of this provision (see De
Cubber v. Belgium, judgment of 26 October 1984, Series
A no. 86, § 30). However, this right is not
absolute, but may be subject to limitations; these are permitted by
implication since the right of access by its very nature calls for
regulation by the State (see Edificaciones March Gallego S.A.
v. Spain, judgment of 19 February 1998, 1998 I,
§ 34 and Garcia Manibardo v. Spain,
no. 38695/97, § 36). In this respect, the Contracting
States enjoy a certain margin of appreciation, although the final
decision as to the observance of the Convention's requirements rests
with the Court. It must be satisfied that the limitations applied do
not restrict or reduce the access left to the individual in such a
way or to such an extent that the very essence of the right is
impaired. Furthermore, a limitation will not be compatible with
Article 6 § 1 if it does not pursue a legitimate aim and if
there is not a reasonable relationship of proportionality between the
means employed and the aim sought to be achieved (see Ashingdane
v. the United Kingdom, judgment of 28 May 1985, Series
A no. 93, p. 24, § 57; Prince Hans-Adam II of
Liechtenstein v. Germany [GC], no. 42527/98, § 44,
ECHR 2001 – VIII, mutatis mutandis).
The
Convention does not compel the Contracting States to set up courts of
appeal or of cassation. However, where such courts do exist, the
guarantees of Article 6 must be complied with. The manner
in which this provision applies to courts of appeal or of cassation
depends on the special features of the proceedings concerned and
account must be taken of the entirety of the proceedings conducted in
the domestic legal order and the court of cassation's role in them.
Given the special nature of the court of cassation's role, which is
limited to reviewing whether the law has been correctly applied, the
Court is able to accept that the procedure followed in such courts
may be more formal (see Meftah and Others v. France [GC],
nos. 32911/96, 35237/97 and 34595/97, § 41, ECHR
2002 VII; Staroszczyk v. Poland, cited above, § 25
and Siałkowska v. Poland, cited above, § 104).
However, the Court must satisfy itself that the method chosen by the
domestic authorities in a particular case is compatible with the
Convention. (see, mutatis mutandis, Artico, cited
above, § 33; Goddi v. Italy, judgment of
9 April 1984, Series A no. 76, p. 11, § 27;
Rutkowski, cited above; Staroszczyk v. Poland,
cited above, §§ 121-122, Siałkowska v. Poland,
cited above, §§ 99-100).
In
discharging its obligation to provide parties to criminal proceedings
with legal aid, when this is provided for by domestic law, the State
must, moreover, display diligence so as to secure to those persons
the genuine and effective enjoyment of the rights guaranteed under
Article 6 (see R.D. v. Poland, nos. 29692/96 and
34612/97, § 44, 18 December 2001).
3. Application of the principles to the facts of the
case
Turning
to the circumstances of the present case, the Court observes that the
Polish law of criminal procedure requires that a person whose
conviction has been upheld by an appellate court should be assisted
by a lawyer in the preparation of his or her cassation appeal against
a judgment given by that court. The Court reiterates that the
requirement that an appellant be represented by a qualified lawyer
before a court of cassation cannot, in itself, be seen as contrary to
Article 6. This requirement is clearly compatible with the
characteristics of the Supreme Court as the highest court in Poland
examining appeals on points of law and it is a common feature of the
legal systems in several member States of the Council of Europe (see
Vacher v. France, judgment of 17 December 1996, Reports
1996-VI, pp. 2148-49, §§ 24 and 28;
Staroszczyk v. Poland, cited above, § 128).
The
Court further notes that in the present case the Court of Appeal
allowed the applicant's request for legal aid for the purposes of
cassation proceedings. The lawyer subsequently advised the court, by
a letter dated 20 March 2003 that, in her view, a cassation
appeal against the judgment of the appellate court did not offer
reasonable prospects of success.
The
Court notes that the Polish Supreme Court, in its decision of 17 June
1997, stated that the role of a legal aid lawyer had to be
understood as obliging him or her to provide comprehensive legal
advice to the party, including as to the prospects of success offered
by a cassation appeal in a given individual case. It concluded that
it was permissible for a legal-aid lawyer assigned to a criminal case
to refuse to prepare and lodge a cassation appeal and reiterated this
conclusion in its subsequent case-law (see paragraphs 23–26
above). From the standpoint of Article 6 of the Convention and
bearing in mind the nature of a cassation appeal in the context of
criminal proceedings, the Court cannot but endorse this conclusion
(see Staroszczyk v. Poland, cited above, § 113,
mutatis mutandis).
In
this connection, the Court emphasises that it is the responsibility
of the State to ensure the requisite balance between, on the one
hand, effective enjoyment of access to justice and the independence
of the legal profession on the other (see Siałkowska
v. Poland, cited above, § 112; Staroszczyk
v. Poland, cited above, § 133). The mere fact that
a legal- aid lawyer can refuse to represent a defendant in
proceedings before the highest court cannot be said to be, of itself,
tantamount to a denial of legal assistance which is incompatible with
the State's obligations under Article 6 of the Convention.
The
Court further reiterates that although admissibility conditions for
appeals are necessary to ensure legal certainty and a proper
administration of justice and litigants should normally expect those
rules to be applied, a particularly strict interpretation of a
procedural rule may deprive an applicant of the right of access to a
court (see Běleš and others v. Czech Republic,
no. 47273/99, § 60, 12 November 2002; Zvolský
and Zvolská v. Czech Republic, no. 46129/99,
12 November 2002; Kemp and Others v. Luxembourg,
no. 17140/05, § 42, 24 April 2008, mutatis mutandis).
In
this connection, the Court notes that the Supreme Court in a series
of decisions noted the difficulties which could arise for the
defendant in securing an effective access to the cassation court
where the grant of legal aid for the purposes of cassation
proceedings had been made but the legal aid lawyer subsequently
concluded that a cassation appeal offered no prospects of success.
The Supreme Court has examined the manner in which the beginning of
the relevant time-limit should be determined in such special
circumstances. It held, in its decision of 26 February 2002,
that following a legal aid lawyer's refusal to prepare a
cassation appeal the event triggering the running of the relevant
time-limit should be established in such a way as to accommodate the
defendant's situation so as not to deprive him of a practical
possibility of having his or her case examined by the Supreme Court.
Hence, it held that the time-limit for lodging a cassation appeal
started to run only on the date on which the defendant was informed
of the lawyer's refusal, not when the lawyer was served with the
judgment of the second-instance court.
The
Court further notes that in 2008 the Supreme Court stated that this
strand of the case-law was not only correct as providing adequate
procedural guarantees to the defendant, but also represented a clear
reflection of the prevailing judicial practice.
In
the present case the applicant was served with the lawyer's refusal
on 1 April 2003 and in the light of the case law of the Supreme
Court referred to above the thirty-day time-limit started to run on
that date. It cannot therefore be said that the applicant was put in
a position where he was left with so little time to have a cassation
appeal prepared that he was denied a realistic opportunity of having
her case brought to and argued before the cassation court (compare
and contrast with Siałkowska v. Poland, no. 8932/05,
§§ 114-115, 22 March 2007, where the time limit
started to run when the legal-aid lawyer was served with the judgment
and the applicant was informed of the lawyer's refusal only three
days before the expiry of the time limit). It has not been shown
or argued that in these circumstances it would have been impossible
for the applicant to find a new lawyer to represent him.
In
this connection, the Court notes that the applicant had been found
eligible for assistance by a legal aid lawyer. The court thereby
acknowledged that he could not bear the costs of a privately hired
lawyer (see paragraphs 11 and 14 above). The Court is aware that
under the case law of the Supreme Court the mere refusal of a
legal aid lawyer to prepare a cassation appeal did not
constitute a sufficient ground for a new lawyer to be assigned to the
case under the legal aid scheme (see paragraphs 23–24 and
26 above). However, the Court is of the view that Article 6 of the
Convention does not confer on the State an obligation to ensure
assistance by successive legal aid lawyers for the purposes of
pursuing legal remedies which have already been found not to offer
reasonable prospects of success. In the present case the first lawyer
appointed under the legal aid scheme found no legal grounds on
which to prepare a cassation appeal. In the absence of indications of
negligence or arbitrariness on the lawyer's part in discharging her
duties, the State can be said to have complied with its obligations
to provide effective legal aid to the applicant in connection with
the cassation proceedings.
However, the Court further notes that under the case-law of the
Supreme Court (see paragraph 27 above) the Katowice Court of Appeal
was obliged to instruct the applicant that the time limit for
lodging a cassation appeal started to run only on the date when he
was served with the lawyer's refusal. The court failed to comply with
that obligation.
The Court is therefore of the view that, to that limited but crucial
extent, the relevant procedural framework available under Polish law
as from February 2002 was deficient in the applicant's case. The
failure of the Katowice Court of Appeal to inform the applicant, who
was not represented by a lawyer, of his procedural rights meant that
he had no way of knowing that he had a new time-frame within which to
find a lawyer who might be persuaded to file a cassation appeal on
his behalf. The Court notes in this connection that the procedural
framework governing the making available of legal aid for a cassation
appeal in criminal cases, as described above, is within the control
of the appellate courts. When notified of a legal-aid lawyer's
refusal to prepare a cassation appeal, it is entirely appropriate and
consistent with fairness requirements, that an appeal court indicate
to an appellant what further procedural options are available to him
or her. The Supreme Court's case-law stresses this point. However, in
the instant case this requirement was not complied with, with the
result that the applicant's right of access to the Supreme Court was
not secured in a “concrete and effective manner”.
Accordingly,
having regard to the above deficiency, there has been a violation of
Article 6 § 1 in conjunction with Article
6 § 3 (c) of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained, relying on Article 8 of the Convention,
about the restrictions imposed on his correspondence and contacts
with his children during his detention. Article 8 of the Convention,
in so far as relevant, reads:
“1. Everyone has the right to respect
for his ... family life ... and correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection
of the rights and freedoms of others.”
The
applicant complained of the breach of his right to respect for his
family life and correspondence in that his minor sons had not been
allowed to visit him in the remand centre after his arrest and that
the correspondence between him and the children had been withheld,
the authorities relying on the need to ensure the effective conduct
of the proceedings. He submitted that under the applicable provisions
of Polish law it was for the parent or legal guardian to decide
whether their minor child could testify in court. In the applicant's
case he had never been given an opportunity to give his opinion on
that matter. It had simply been assumed that his sons should be
interviewed by the prosecuting authorities, despite the fact that the
applicant had had full parental powers. The law did not provide for
any mechanism by which the interests of a parent charged with a
criminal offence could be reconciled with the need to conduct
criminal proceedings against him by interviewing his children as
witnesses. The applicant concluded that the restrictions on his
contacts with his sons had therefore been unlawful and unjustified.
The
Court reiterates that detention, like any other measure depriving a
person of his liberty, entails inherent limitations on private and
family life. Such restrictions as limitations on the number of family
visits, supervision of those visits and, if so justified by the
nature of the offence, subjection of a detainee to a special prison
regime or special arrangements for visits constitute an interference
with his rights under Article 8 but are not, by themselves, in
breach of that provision (see Kucera v. Slovakia,
no. 48666/99, §§ 127-128, 17 July 2007 and Lorsé
and Others v. the Netherlands, no. 52750/99,
§ 72). However, it is an essential part of a detainee's
right to respect for family life that the authorities enable him or,
if need be, assist him in maintaining contact with his close family
(see, mutatis mutandis, Messina v. Italy (no. 2)
no. 25498/94, § 61, 28 September 2000).
Any
restriction of that kind must be “in accordance with the law”,
pursue one or more legitimate aims listed in paragraph 2 and, in
addition, must be justified as being “necessary in a democratic
society”. As to the latter criterion, the Court would further
reiterate that the notion of “necessity” for the purposes
of Article 8 means that the interference must correspond to a
pressing social need, and, in particular, must be proportionate to
the legitimate aim pursued. When assessing whether an interference
was “necessary” the Court will take into account the
margin of appreciation left to the State authorities but it is a duty
of the respondent State to demonstrate the existence of the pressing
social need motivating the interference (see, among other
authorities, McLeod v. the United Kingdom,
judgment of 23 September 1998, Reports 1998-VII, p. 2791,
§ 52; Płoski v. Poland, no. 26761/95,
§ 35, 12 November 2002; and Baginski
v. Poland, no. 37444/97, § 89, 11 October
2005).
The
Court considers that the decisions complained of amounted to
“interference” with the exercise of the applicant's
rights guaranteed by Article 8 of the Convention. The contested
measures were applied under Article 217 of the Code of Execution
of Criminal Sentences. It consequently holds that the interference
was “in accordance with the law”. The Court notes that
the limitations on the applicant's contact with his family and on his
correspondence with them were imposed on the grounds that they had
been witnesses in the proceedings against him (see paragraph 10
above). The impugned measure can accordingly be considered as having
been taken in pursuance of “the prevention of disorder and
crime”, which is a legitimate aim under Article 8. It
remains for the Court to ascertain whether the authorities struck a
fair balance between the need to secure the process of obtaining
evidence in the applicant's case and his right to respect for his
family life while in detention.
The
Court notes that no information was submitted by the applicant as to
the exact scope of the restrictions imposed on his contacts and
correspondence with his family. In particular, it has not been shown
when the relevant decisions were given by the domestic authorities
and on what grounds they held that the restrictions were justified.
Nor did the applicant specify the periods during which these
restrictions remained in force. In the absence of detailed factual
submissions in support of this complaint, it is impossible for the
Court to examine, in particular, whether the authorities considered
any alternative means of ensuring that the applicant's contact with
his children would not obstruct the process of taking evidence. Such
alternative restrictions could entail, for example, supervision of
their visits by a prison officer or possibly also other restrictions
on the nature, frequency and duration of contact (see Klamecki
(no.2) v. Poland, no. 31583/96, § 151,
3 April 2003). In this context the Court notes that it is
reasonable to assume that different restrictions were called for
during the investigation and, later on, when the proceedings entered
their judicial stage. However, an examination of the restrictions
imposed on the applicant's contacts and correspondence with his
family from the angle of their proportionality with the legitimate
aim sought would only have been possible had the applicant made
sufficiently detailed submissions as to the facts. In the light of
the information before it the Court considers that it has not been
shown that the measures complained of went beyond what was necessary
in a democratic society “to prevent disorder and crime”
in the context of family visits in prison during pre-trial detention
and an on-going criminal investigation.
It
follows that this part of the application is manifestly ill founded
and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant complained under Article 6 § 1 of the
Convention essentially about the outcome of the proceedings. He also
complained under Article 6 § 3 (c) of the
ineffectiveness of his defence in that his defence counsel did not
win the case.
However,
the Court reiterates that, in accordance with Article 19 of the
Convention, its duty is to ensure the observance of the engagements
undertaken by the Contracting Parties to the Convention. In
particular, it is not its function to deal with errors of fact or law
allegedly committed by a national court unless and in so far as they
may have infringed rights and freedoms protected by the Convention.
Moreover, while Article 6 of the Convention guarantees
the right to a fair hearing, it does not lay down any rules on the
admissibility of evidence or the way it should be assessed, which are
therefore primarily matters for regulation by national law and the
national courts (see García Ruiz v. Spain [GC],
no. 30544/96, § 28, ECHR 1999-I, with further
references).
In
the present case the applicant did not allege any particular failure
on the part of the relevant courts to respect his right to a fair
hearing. Indeed, his complaints are limited to challenging the result
of the proceedings leading to his allegedly wrongful conviction.
Assessing the circumstances of the case as a whole, the Court finds
no indication that the impugned proceedings were conducted unfairly.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
V. APPLICATION OF ARTICLE 46 OF THE CONVENTION
Article
46 of the Convention provides:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
Recently
in the case of Kauczor v. Poland (see Kauczor,
cited above, paragraphs 58 et seq, with further references,
the Court referred to the above mentioned 2007 Resolution of the
Committee of Ministers taken together with the number of judgments
recently delivered and concluded:
“60. The Court thus
concludes, as the Committee of Ministers did, that for many years, at
least as recently as in 2007, numerous cases have demonstrated that
the excessive length of pre-trial detention in Poland reveals a
structural problem consisting of “a practice that is
incompatible with the Convention” (see mutatis mutandis
Broniowski v. Poland [GC], no. 31443/96, §§ 190-191,
ECHR 2004-V; Scordino v. Italy (no. 1) [GC],
no. 36813)”.
The
Court notes that, as in other numerous similar detention cases, the
authorities did not justify the applicant's continued detention by
relevant and sufficient reasons (see paragraph 51 above). Moreover,
as demonstrated by the ever increasing number of judgments in which
the Court has found Poland to be in breach of Article 5 § 3, the
present case is by no means an isolated example of the imposition of
unjustifiably lengthy detention but a confirmation of a practice
found to be contrary to the Convention (see, among many other
examples, Celejewski v. Poland, no. 17584/04, 4 May
2006; Kąkol v. Poland, no. 3994/03, 6 September
2007; Malikowski v. Poland, no. 15154/03, 16 October
2007). Consequently, the Court sees no reason to diverge from its
findings made in the Kauczor case as to the existence of a
structural problem and the need for the Polish State to adopt
measures to remedy the situation (see Kauczor, cited above,
§§ 60-62 ).
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 30,000 euros (EUR) in respect of non pecuniary
damage.
The
Court accepts that the applicant has suffered non pecuniary
damage as a result of the violation found. Making its assessment on
the equitable basis and having regard to the circumstances of the
case, the Court awards the applicant EUR 3,000 under this head.
B. Costs and expenses
The
applicant, who received legal aid from the Council of Europe in
connection with the presentation of his case, sought reimbursement of
EUR 3,600 for costs and expenses incurred in the proceedings
before the Court.
According to the Court's case-law, an applicant is
entitled to the reimbursement of costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and are reasonable as to quantum. The Court notes that the
applicant was paid EUR 850 in legal aid by the Council of Europe. In
the present case, regard being had to the information in its
possession and the above criteria, the Court considers it reasonable
to award the sum of EUR 2,000 for the proceedings before it, less the
amount received by way of legal aid from the Council of Europe. The
Court thus awards EUR 1,150 for costs and expenses.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares admissible the complaints concerning
the unreasonable length of the applicant's detention and the lack of
effective access to the Supreme Court and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
5 § 3 of the Convention;
Holds that there has been a violation of Article
6 § 1 of the Convention in conjunction with Article 6 § 3
(c);
4. Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Polish zlotys at the rate applicable at
the date of settlement:
(i)
EUR 3,000 (three thousand euros) in respect of non-pecuniary damage,
plus any tax that may be chargeable;
(ii)
EUR 1,150 (one thousand one hundred and fifty euros) in respect of
costs and expenses, plus any tax that may be chargeable to the
applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
5. Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 19 May 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence
Early Nicolas Bratza Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the concurring
opinions of Judges Bonello and Mijović are annexed to this
judgment.
N.B.
T.L.E.
CONCURRING OPINION
OF JUDGE BONELLO
The
facts of this case disclose that the applicant, a defendant in a
criminal trial, had requested his legal-aid lawyer to lodge a
cassation appeal against the judgement of the appellate court. The
lawyer, barely two days before the lapse of the original period
allowed by law for filing the appeal, informed the applicant that his
case “lacked prospects of success and that she therefore
refused to prepare and lodge one with the Supreme Court”.
I am dissatisfied with the reasoning the Court adopted to find a
violation of Article 6. In my view, the applicant's rights were
violated not solely because the Katowice Court of Appeal failed in
its obligation to inform him of an extended time limit to file a
cassation appeal, as the Court found, but for far more radical
reasons.
To
me the facts in themselves reveal a grievous violation of the
applicant's right of access to a court. Once the Polish legal system
has put in place an ultimate recourse to cassation in criminal
proceedings, to signify anything at all, this right has to be a
meaningful (“practical and effective”) one, and not one
dependent exclusively on the unfettered and unreviewable caprice of
one single non-juridical person.
If the right to have recourse to the Court of Cassation exists in the
Polish system, the guarantees of Article 6 had to be complied with.
Moreover, when the state is under an obligation to provide legal aid,
this must be done in a manner that secures the beneficiaries “the
genuine and effective enjoyment of the rights guaranteed under
Article 6”.
This
Court has acknowledged the importance of not making the lodging or
non-lodging of cassation appeals in civil proceedings depend
exclusively on the whims of legal-aid lawyers. It has found a
violation of Article 6 when the applicants' right of access to a
court for a cassation review in civil litigation was thwarted by
last-minute refusals of legal-aid lawyers to proceed with the
appeal.
I see as inconsequential the expectation of high standards in civil
proceedings and of lower ones in criminal trials. If anything, what
applies to civil proceedings should apply more forcefully still to
criminal ones.
The
Polish legal system establishes (a) the right of a cassation
appeal in criminal trials; (b) that this right can only be
exercised through the patronage of legal counsel; (c) the right
of appellants to the Court of Cassation of restricted means to a
legal aid lawyer. In this case, the Polish courts accepted that
the applicant's indigence justified his request to be assisted by a
legal aid lawyer to prepare and plead his cassation appeal.
The
Polish courts have attached such a determining value to criminal
cassation appeals that they have extended the time limit (30 days)
for lodging such an appeal when the appellant is assisted by a
legal-aid lawyer. It starts running not from the date the lawyer is
served with the judgment by the second-instance court, but only from
the date on which the defendant was informed of the lawyer's
refusal.
The motivation behind this reasoning may have been admirable. Its
factual consequences – giving the appellant sufficient time to
employ a private lawyer against payment – disastrous, as I will
suggest in paragraph 11.
In
my view the present judgement has emptied of any real substance the
right of access to a court. Cumulatively, the three rights
established by the Polish legal order (v. paragraph 4) have, in
practice, morphed into the more overriding right of any legal-aid
lawyer to have the first and the last word, and all the other words
in between. From today onwards it is not the Court of Cassation that
decides on the validity or otherwise of the grounds for cassation.
That has been left exclusively – and irrevocably – to the
more-or-less inspired fancies of any legal-aid lawyer. The ultimate
bulwark of cassation review, willed by the Polish legal system, has
been irretrievably weakened by delegating the destiny of impecunious
and often petulant clients to the benevolence or otherwise of
underpaid and sometimes resentful lawyers.
The
fundamental right of access to a court hangs solely on the goodwill
of a lawyer almost coerced to work for a pittance, rather than on any
objective evaluation of merit conducted by an independent and
impartial authority. This right has been forsaken to the often
merciless mercy of one legal-aid adviser, cheerfully unrestrained by
the most minimal checks and balances. The legal-aid lawyer, solo,
determines all of this, and some lawyers are known not to be immune
from a well–crafted commercial sense of humour. It has not been
pointed out by the respondent Government that any legal-aid lawyer
has ever been sanctioned for a capricious refusal to lodge a
cassation appeal in a criminal trial. Untouchable if they decide
well, equally untouchable if they decide irresponsibly. The twentieth
century has removed infallibility from the Holy Roman Pontiff and
bestowed it on Polish legal-aid lawyers.
This
delegation of the very ultimate line of defence to the unchallenged
discretion of legal-aid lawyers appears more than merely threatening.
In refusing to prepare and to lodge a cassation appeal, lawyers are
not bound to provide explanations. Their line of reasoning, if it can
be charitably so called, may forever remain a well-kept secret. You
can't appeal because the legal-aid lawyer says you can't. And why
does he say you can't? Because he says you can't, stoopid. The
domestic courts have absolutely no say in it. Nor does the European
Court of Human Rights want any.
In
the present case, the lawyer was allowed to shield her inaction by
relying on a formula as hackneyed as it is meaningless: “in her
opinion, a cassation appeal lacked prospects of success”. No
reference to stringent argument, to authoritative precedent, no
judicial doctrine to comfort her conclusions – just her
unsupported 'opinion', and next one please. Was her discretion
subject to any review? No. Did she give any reasons? No. Did the
Cassation Court have any input in her decision? No. Did the applicant
have any redress? No. Is she the one and ultimate arbiter? Yes. Only
a small minority of the Court seems to have been upset by this
concentrate of approved arbitrariness. I was upset, but then,
I confess, I am sometimes guilty of the unpleasant misdemeanour of
straying from the paths of legalism and intruding into reality.
What
rules is the dictatorship of the legal-aid lawyer. What governs is
the tyranny of the unfettered discretion of a person not answerable
to anyone. The domestic Court of Cassation exhausts its liability by
the mere appointment of a legal-aid lawyer. How those legal-aid
lawyers, assigned for the specific purpose of lodging a cassation
appeal, discharge their responsibilities, is then nobody's business.
If they discharge it properly, fine. If not, tough luck, but fine all
the same. Their whimsy reigns supreme, and this Court of human rights
is happy it should be so. It is happy that legal-aid lawyers have
absolute power, and no commensurate responsibility. A totality of
power that would not disgrace anyone proud to be totalitarian.
I
find less than convincing the reasoning that, if informed in good
time, the would-be appellants to the Court of Cassation can get
themselves a private lawyer against payment, if the legal-aid lawyer
deserts the cause. An applicant is granted legal aid only
because the domestic court is satisfied he does not have the means to
hire a paid lawyer. Then, after being officially certified indigent
by the state, that state invites the appellant to hire and pay for a
lawyer to safeguard his rights. A wonderfully consequent way for a
state to follow through its own findings - in the view of those who
believe that saying white and black in the same breath demonstrates
the virtues of versatility.
Once
the Court of Cassation had acknowledged the applicant's right to
legal aid, arguing that paid services are an acceptable fall-back, is
bringing consistency into disrepute and wrecking the very basic
architecture of legal aid. Is there a whiff of plutocratic
discrimination in all this? Wealthy defendants who pay their lawyer
have access to the Court of Cassation for their ultimate defence.
Those of limited means, only if their lawyer wakes up in a good mood.
This
appears to me to have been the right occasion in which, if an
equitable solution contrasted with some previous case-law of the
Court, the Chamber should have relinquished jurisdiction in favour of
the Grand Chamber.
Of
course, we can all agree that the right of access to a court - the
core issue in this complaint - is not absolute, and may be subject to
limitations. But the Court “must be satisfied that the
limitations applied do not restrict or reduce the access left to the
individual in such a way or to such an extent that the very essence
of the right is impaired”. Oh holy, noble, and meaningless
mantras. I do not see that the essence of the right of access of the
applicant to the Court of Cassation was “impaired”. It
was totally and completely wiped out. The legal community would be
eternally thankful to anyone who pointed out what scraps of the right
of access to the Court of Cassation were left to the applicant. I
have looked for them hard and with plenty of perseverance at the
beginning, and I am still looking for them now.
CONCURRING OPINION OF JUDGE MIJOVIĆ
While
I fully support Judge Bonello's arguments expressed in his concurring
opinion, I feel compelled to emphasise a few further points since I
see the problem of the refusal of lawyers appointed under the
legal aid scheme to represent legally-aided persons on the
ground that a claim has no reasonable prospects of success as the
general one. Additionally, I do not see this problem as related
exclusively to criminal proceedings. It also concerns both civil
and administrative ones, although the facts of this case do not allow
me to extend my opinion to such proceedings.
Proceedings
concerning the lodging of a cassation appeal against the judgment of
the appellate court in this case started with the Katowice Court of
Appeal's appointment of a legal-aid lawyer for the purposes of the
cassation proceedings. The letter containing both the legal-aid
lawyer's decision not to lodge a cassation appeal and the court's
decision not to appoint another legal-aid lawyer was served on the
applicant only two days before the time-limit for lodging a cassation
appeal was to expire. The main reason for the Chamber to find a
violation of Article 6, in accordance with the Court's
case-law,
was “that the relevant procedural framework available under
Polish law as from February 2002 was not applied in the applicant's
case in such a manner as to afford him a realistic opportunity of
taking further steps to have his cassation appeal lodged with and
argued before the Supreme Court and to have thereby his access to a
court secured in an effective manner”. However, in my view, the
refusal by a lawyer appointed under a legal-aid scheme to prepare
grounds of appeal for consideration by the Supreme Court, as well as
the requirements for lodging a cassation appeal, are issues that
represent a breach of the applicant's right of access to the court
and reflect the existence of a serious problem in the legal-aid
scheme set up by the Polish legislation in general.
While
there are no doubts that it is legitimate for the State to determine
that legal aid should be available for some types of proceedings and
not for others, the limitations applied must not restrict the access
left to the individual in such a way that the very essence of the
rights guaranteed by Article 6 is impaired. The applicant in this
case complained that as a result of the legal-aid lawyer's refusal to
lodge a cassation appeal he had been denied effective access to the
Supreme Court. The provisions of Article 6 stipulate that
everyone charged with a criminal offence has, among other rights, a
right “to defend himself in person or through legal assistance
of his own choosing or, if he has not sufficient means to pay for
legal assistance, to be given it free when the interests of justice
so require.”
As
far as I understand the practice of the Supreme Court, once the
legal-aid lawyer refuses to lodge a cassation appeal the court could
assign a new legal-aid lawyer only if it had been shown that the
first lawyer had been negligent in his task of assessing whether a
cassation appeal had any prospect of success. The negligence of the
first legal-aid lawyer, additionally, had to “be shown”
in separate civil proceedings against the lawyer for compensation,
the applicant being required to prove that the court should, in the
circumstances, have assigned a new legal-aid lawyer. To my mind, this
part of the legal-aid scheme is simply too far removed from what I
would consider sufficient to ensure effective access to the court.
While
it is true that the right to a court, of which the right of access
constitutes one aspect
is not absolute but may be subject to limitations, and that the
States in these matters surely enjoy a certain margin of
appreciation,
these limitations are not compatible with Article 6 provisions
if there is no legitimate aim at issue and if there is a lack of
proportionality between the means employed and the aim sought to be
achieved.
The Convention does not compel the Contracting States to set up
courts of appeal or of cassation. However, where such courts do
exist, the guarantees of Article 6 must be complied with.
These
principles of the Court's case-law are correctly stated in the
Chamber's judgment. Nevertheless, in my opinion, they should have
been further developed and taken a step further in order to criticise
the conceptual confusion surrounding the domestic provisions
governing the legal aid scheme, namely the fact that under the
applicable domestic regulations the legal-aid lawyer is not obliged
to prepare a written legal opinion on the prospects of success of the
appeal and, moreover, the law does not set any standards as to the
quality of the legal advice that has to be given to justify the
lawyer's refusal to lodge the appeal.
Furthermore,
I strongly believe that the decision whether a case offers reasonable
prospects of success should not be taken by a legal-aid lawyer. I
would stress in this connection that the right of access to the
Supreme Court should be based on the idea that each and every
individual should be granted the right to state his case before a
last-instance jurisdiction if she or he considers that the law has
been violated or misinterpreted by the lower courts. Giving a right
to a legal-aid lawyer to decide on the fate of the case even before
it is brought before the Supreme Court and without any written
reasons for that decision, is, for me, arbitrary, even, as Judge
Bonello pointed out, capricious. Of course, a legal aid lawyer's
opinion should matter. However, I see legal-aid more in terms of free
legal representation than legal advice or, even worse, only
the legal (and very personal) attitude of an individual having
no judicial status. Additionally, as a Judge, I find the formula “in
a legal-aid lawyer's opinion, a cassation appeal lacked prospects of
success” not only arbitrary, but offensive and prejudicial,
especially bearing in mind the fact that the Court of Appeal in this
case relied on this “opinion” by refusing the applicant's
requests for the appointment of a new legal-aid lawyer and thereby
finally preventing the applicant from having his case decided by the
highest judicial authority. That is what I see as the essence of this
problem and that is why I think that the European Court's case-law
should have dealt with this situation more carefully instead of
finding a violation of Article 6 for the sole reason that the
time-limits set by the Polish legislation had not been respected.
